Important changes to the EP&A Act – lapsing consents, appeal periods and existing uses

Some important changes were recently made to the Environmental Planning and Assessment Act 1979 (EP&A Act) and the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) including to extend the time for:

• the lapsing of development consents
• the bringing of development appeals
• the presumed abandonment of existing uses.

Lapsing of development consent

Prior to recent changes, a development consent lapsed 5 years after the date from which it operated, unless this period was reduced by the consent authority.

The COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (Amendment Act) amends the timeframe for when development consents lapse. If development consent:

• commenced operation before 25 March 2020 and either:
  • had not lapsed as at 25 March 2020
  • lapses after 25 March 2020 but before 14 May 2020,
    
    the consent will now lapse 2 years after the date on which it would have otherwise lapsed (extending the period of the consent by 2 years);

• commences operation after 25 March 2020
  
  it will lapse 5 years after the date from which it operates (unless this period is reduced by the consent authority, however a consent authority cannot reduce the period for a development consent granted between 25 March 2020 and 25 March 2022 so that it lapses within 5 years).[1]

Preventing development consent from lapsing

Development consent for the erection of a building, the subdivision of land or the carrying out of a work can be prevented from lapsing if work is carried out before the consent has lapsed, and the work (s 4.53(4)):

• is ‘building, engineering or subdivision work’
• relates to the building, subdivision or work permitted by the development consent
• is lawfully and ‘physically commenced’ on the land to which the consent applies.

A new amendment to the EP&A Regulation means that for any development consent granted from 15 May 2020, the following work does not constitute ‘physical commencement of work’ for the purposes of s 4.53 of the EP&A Act:[2]

• creating a bore hole for soil testing
• removing water or soil for testing
• carrying out survey work, including the placing of pegs or other survey equipment
• acoustic testing
• removing vegetation as an ancillary activity
• marking the ground to indicate how land is to be developed.

Prior to the amendment, such works may have prevented the lapsing of the consent.

Extension of the appeal period

Prior to the Amendment Act, a development appeal could only be brought (except by an objector) within 6 months of the decision being notified, registered on the portal or deemed to be refused (relevant date).

Due to COVID-19, the Amendment Act temporarily extends the appeal period to 12 months of the relevant date, if the relevant date occurs:

• between 25 March 2020 and 25 March 2022
• during the 6 month period immediately before 25 March 2020.

If the relevant date occurs after 25 March 2022, the appeal period returns to 6 months.

In the case of an objector, the appeal period is extended from 28 days of being notified of the decision to 56 days if they are notified:

• between 25 March 2020 and 25 March 2022
• during the 28 day period immediately before 25 March 2020.

From 25 March 2022, the appeal period for an objector returns to 28 days.

Period before an existing or lawful use is abandoned

The EP&A Act provides that an existing use (s 4.66) or lawful use (s 4.68) is presumed to be abandoned if it ceases to be ‘actually so used’ for a continuous period of 12 months.

From 25 March 2020 to 25 March 2022, the Amendment Act extends the period before which an existing use or lawful use is presumed to be abandoned from 12 months to 3 years.

[1] The explanatory notes to the Amendment Act incorrectly state that a development consent granted during the prescribed period (i.e. 25 March 2020 – 25 March 2022) will now lapse 7 years after it comes into operation. This is not correct, a development consent granted during or after the prescribed period will lapse 5 years after it comes into operation.

[2] The Environmental Planning and Assessment Amendment (Lapsing of Consent) Regulation 2020 insets clause 124AA into the EP&A Regulation.